17 The question was not answered in SZDQO which dealt with the more specific question of the application of s 425A(3). The answer depends on the extent of the 'matters' with which Division 4 of Part 7 of the Act deals - an issue on which there is some difference of opinion in this Court; see Branson J's analysis in SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 at [12]-[16]. The view I have formed about the notice of the rescheduled hearing that was given to the appellant is such that I do not need to explore this difference of opinion or what limits might be imposed in Division 4. This is because I am satisfied that, once it is accepted that s 425A(3) does not apply, the highest that the Tribunal's obligation to give notice of the rescheduled hearing date can be put is that the notice must, in all the circumstances, be reasonable. I am satisfied that the notice given to the appellant met this standard.
18 Section 426A does not oblige the Tribunal to reschedule a hearing but does not prevent it from doing so: s 426A(2). Where the Tribunal accedes to a request to reschedule the hearing it obviously needs to notify an applicant of the changed date. The Act does not specify the extent of notice that must be given in these circumstances. However, given the Tribunal's obligation to act reasonably and in accordance with the requirements of procedural fairness in exercising its powers (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] and see Deane J's discussion in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 365-6), the rescheduling, just as much as the original invitation under s 425(1), must not be a 'hollow shell or an empty gesture': Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 at [33]. It follows that an applicant must be given notice of the rescheduled date that is reasonable in all the circumstances.
19 In this case the Tribunal promptly responded to the appellant's request. The rescheduled date was 20 July 2005, two days after the date upon which the appellant's medical certificate said that he would be 'fit for duty'. The Tribunal was entitled to take the period mentioned in the certificate seriously; it was not necessary for it to provide a margin outside that period especially when the total period of indisposition was only one week.
20 There is no evidence as to when the Tribunal's letter was sent. However, it is not in dispute that it was sent by express post and this suggests that the Tribunal recognised a degree of urgency in ensuring that the appellant was notified. The Federal Magistrate took judicial notice of the delivery times for express post (see [6] above). Relying on s 163(1) of the Evidence Act 1995 (Cth) Mr Zipser for the appellant on a pro bono basis submitted that the Federal Magistrate should have presumed the letter to have been sent five business days after 15 July 2005, in which case it would follow that it would not have been delivered before the rescheduled hearing date. In my view the 'prepaid post' referred to in s 163(1) is different from the express post by which the letter was sent and therefore the section is not applicable. In the absence of evidence to the contrary the Federal Magistrate was entitled to assume that the letter was delivered on either 18 or 19 July 2005.
21 While the appellant's evidence that he did not receive the letter until after 20 July 2005 was not contradicted, it is clear from the appellant's own evidence that several days may pass between his clearing his post office box. In circumstances where the appellant sought a late postponement of the hearing date, it is reasonable to expect that he would take some responsibility for ensuring that he received the Tribunal's response promptly. The evidence does not show that being 'unfit for duty' means that he was not able to access his post box but, even assuming this to be the case, the evidence suggests that the appellant was at least capable of contacting the Tribunal to find out what was happening.
22 According to the Federal Magistrate the appellant said that he had no way of contacting the Tribunal because he did not receive a letter. This claim ignores the fact that the appellant's request for postponement of the hearing date was transmitted by facsimile; in that case he was able to contact the Tribunal expeditiously and there was nothing to suggest that he could not have made an enquiry, in this or in some other way, as to whether his request had been granted. I find that in all the circumstances the Tribunal gave the appellant reasonable notice of the rescheduled hearing date and that there was no breach of procedural fairness in this regard.